VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT"), dated as of March
18, 1999 (the "AGREEMENT"), is by and among the undersigned holders
(collectively the "HOLDERS" and each a "HOLDER") of shares of common stock, par
value $.01 per share (the "COMPANY COMMON STOCK"), of ROCK BOTTOM RESTAURANTS,
INC., a Delaware corporation (the "COMPANY").
WHEREAS, the Company, RB Capital, Inc., a Delaware corporation
("PARENT"), and RBR Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), propose to enter into an Agreement and Plan
of Merger, dated as of the date hereof (as amended from time to time, the
"MERGER AGREEMENT"), pursuant to which, among other things, Merger Sub would be
merged (the "MERGER") with and into the Company at the Effective Time, and,
except as otherwise provided in the Merger Agreement, each outstanding share of
Company Common Stock would be converted into the right to receive $10.00 per
share in cash, without interest thereon;
WHEREAS, the Board of Directors of the Company (the "COMPANY
BOARD") has formed a special committee of its members (the "SPECIAL COMMITTEE")
and has authorized the Special Committee to, among other things, review and
evaluate the terms of, and make recommendations to the Company Board with
respect to, the Merger Agreement and the transactions contemplated thereby,
including the Merger;
WHEREAS, to induce the Company to enter into the Merger
Agreement, the Company has requested each Holder to agree, and each Holder has
agreed, to enter into this Agreement;
WHEREAS, prior to the execution hereof, and prior to Parent,
Merger Sub or any of the Holders becoming an "interested stockholder" for
purposes of Section 203 of the DGCL ("SECTION 203") by virtue of entering into
the Merger Agreement or this Agreement, the Company Board has approved this
Agreement, the Merger Agreement and the transactions contemplated hereby and
thereby, including the agreement of the Holders to vote as provided in Section 2
of this Agreement and not to transfer shares of Company Common Stock as provided
in Section 6(b) of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein and for other good and valuable consideration, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. Each Holder
represents and warrants, severally and not jointly, to the Company as follows:
(a) OWNERSHIP OF SECURITIES. As of the date hereof, each
Holder is the record and/or beneficial owner of the number of shares of
Company Common Stock (the "EXISTING SECURITIES" and, together with any
shares of Company Common Stock or other
capital stock or securities of the Company hereafter acquired by the
Holder, the "SUBJECT SECURITIES") set forth opposite such Holder's name
on the signature page to this Agreement. Such Holder does not
beneficially or of record own any shares of Company Common Stock or
capital stock or other securities of the Company as of the date hereof
other than the Existing Securities. Except as indicated on SCHEDULE I,
each Holder (i) has sole voting power and sole power to issue
instructions with respect to the voting of such Holder's Existing
Securities, (ii) has sole power of disposition, sole power of exercise
and the sole power to demand appraisal rights, in each case with
respect to all of such Holder's Existing Securities, and (iii) on the
date of the Stockholders Meeting (as defined in the Merger Agreement),
will have sole voting power and sole power to issue instructions with
respect to the voting of all of such Holder's Subject Securities, and
the sole powers of disposition, exercise and to demand appraisal
rights, in each case with respect to all of such Holder's Subject
Securities.
(b) POWER; BINDING AGREEMENT. Each Holder has the legal
capacity, power and authority to enter into and perform all of such
Holder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by each Holder will not violate any other
agreement relating to the Subject Securities to which the Holder is a
party, including, without limitation, any voting agreement,
shareholder's agreement, partnership agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such
Holder and constitutes a valid and binding agreement of such Holder,
enforceable against such Holder in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(c) NO CONFLICTS. Except as disclosed in SCHEDULE II, no
filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority is necessary for the
execution of this Agreement by such Holder and the consummation by such
Holder of the transactions contemplated hereby. Neither the execution
and delivery of this Agreement by such Holder nor the consummation by
such Holder of the transactions contemplated hereby nor compliance by
such Holder with any of the provisions hereof will (i) conflict with or
result in any breach of any organizational documents applicable to such
Holder, (ii) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification
or acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which such Holder is a party or by which such Holder's
properties or assets may be bound, or (iii) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to such Holder or any of such Holder's properties or assets,
except in any such case as would not materially impair such Holder's
performance of its obligations hereunder.
2
(d) NO LIENS. The Existing Securities are now and, at all
times during the term hereof, the Subject Securities will be held by
such Holder, or by a nominee or custodian for the benefit of such
Holder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any encumbrances arising
hereunder.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders
of the Company, including without limitation the Stockholders Meeting, called
with respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders of the Company
with respect to any of the following, each Holder, severally and not jointly,
agrees that it shall vote or execute a written consent, as the case may be, with
respect to all the Subject Securities as to which it has power to vote in any
such vote or consent in favor of the Merger and each of the other transactions
contemplated by the Merger Agreement and the adoption of and execution and
delivery of the Merger Agreement and the approval of the terms thereof.
3. EQUITY COMMITMENTS. Each Holder, as applicable, agrees,
severally and not jointly, to contribute to Parent the amount of cash and the
amount of such Holder's Subject Securities specified in, and in the manner
contemplated by, the equity commitment letter executed and delivered by such
Holder in connection with the Merger Agreement (collectively, the "EQUITY
COMMITMENT LETTERS").
4. IRREVOCABLE PROXY. EACH HOLDER HEREBY, SEVERALLY AND NOT
JOINTLY, GRANTS TO, AND APPOINTS THE SPECIAL COMMITTEE AND THE EACH MEMBER OF
THE SPECIAL COMMITTEE, AND ANY SUCCESSOR THERETO OR OTHER DESIGNEE THEREOF, EACH
OF THEM INDIVIDUALLY, SUCH HOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH HOLDER'S
SUBJECT SECURITIES IN ACCORDANCE WITH SECTION 2 HEREOF. THIS PROXY IS COUPLED
WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND EACH HOLDER WILL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY REASONABLY BE NECESSARY
TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY IT WITH RESPECT TO THE SUBJECT SECURITIES.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) POWER; BINDING AGREEMENT. The Company has full corporate
power and authority to enter into and perform all of the Company's
obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency or other similar laws, now
or hereafter in effect, affecting creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses
3
and to the discretion of the court before which any proceeding therefor
may be brought.
(b) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body
or authority is necessary for the execution of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby. Neither the execution and delivery of this
Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby nor compliance by the Company with any
of the provisions hereof shall (i) conflict with or result in any
breach of any organizational documents applicable to the Company, (ii)
result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification
or acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation
of any kind to which the Company is a party or by which the Company's
properties or assets may be bound, or (iii) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to the Company or any of the Company's properties or assets,
except for any such conflicts, breaches, defaults or violations as
would not materially impair the Company's performance of its
obligations hereunder.
6. COVENANTS OF THE HOLDERS. Each Holder, severally and not
jointly, hereby agrees and covenants that:
(a) NOTICE OF ACQUISITION PROPOSALS. If any Holder receives
any Acquisition Proposal (as defined in the Merger Agreement), such
Holder shall promptly inform the Company and the Special Committee of
the terms and conditions of such Acquisition Proposal and the identity
of the person or entity making such Acquisition Proposal.
(b) RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE.
Such Holder shall not, directly or indirectly: (i) except pursuant to
the terms of the Merger Agreement, this Agreement and the Equity
Commitment Letters, offer for sale, sell, transfer (whether by merger,
operation of law or otherwise), tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment or
other disposition of, any or all of such Holder's Subject Securities;
(ii) except as contemplated hereby, grant any proxies or powers of
attorney, deposit any such Subject Securities into a voting trust or
enter into a voting agreement with respect to any of such Holder's
Subject Securities; or (iii) take any action that would make any
representation or warranty contained herein untrue or incorrect or have
the effect of preventing or disabling such Holder from performing its
obligations under this Agreement; PROVIDED, HOWEVER, nothing in this
Section 6(b) shall prohibit transfers between Holders or pursuant to
any prior obligation or restriction set forth on SCHEDULE II.
7. FIDUCIARY DUTIES. Notwithstanding anything in this Agreement
to the contrary, the covenants and agreements set forth herein shall not prevent
any Holder serving on the
4
Company Board from taking any action, subject to applicable provisions of the
Merger Agreement, which such director shall deem to be required by his fiduciary
duties to the Company or its stockholders while acting in such person's capacity
as a director of the Company.
8. ASSIGNMENT; BENEFITS. This Agreement may not be assigned by
any party hereto without the prior written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, each Holder,
the Company and their respective successors and permitted assigns.
9. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier or sent by
electronic transmission, with confirmation received, to the address or telecopy
number specified in this Section 9 or to such other address or telecopy number
as any party may furnish to the other parties in writing in accordance herewith:
(a) If to any Holder, at the applicable address set forth
on the signature pages hereto, with a copy to:
Xxxxx, Xxxxxx & Xxxxxx LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxx
(b) If to the Company, to:
Rock Bottom Restaurants, Inc.
c/o Special Committee of the Board of Directors
000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Chairman
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxx
Sears Tower, Suite 5800
Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
5
10. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable harm would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
11. AMENDMENT. This Agreement may not be amended or modified,
except by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by either party hereto, except by an
instrument in writing signed by or on behalf of the party granting such waiver.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE LAWS
THAT MIGHT BE APPLICABLE UNDER CONFLICTS OF LAWS PRINCIPLES. The parties hereby
(i) irrevocably submit to the jurisdiction of the Chancery Court of the State of
Delaware and the federal courts of the United States of America located in the
State of Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and in respect of the transactions contemplated
hereby and (ii) waive, and agree not to assert, as a defense to any action, suit
or proceeding for the interpretation or enforcement hereof, that such party is
not subject to such jurisdiction or that such action, suit or proceeding may not
be brought or is not maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement may not be enforced in or by such
courts, and the parties hereby irrevocably agree that all claims with respect to
such action, suit or proceeding shall be heard and determined in such courts.
The parties hereby consent to and grant any such court jurisdiction over the
person of such party and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action, suit or
proceeding in the manner provided in Section 9, or in such other manner as may
be permitted by applicable law, shall be valid and sufficient service thereof.
13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO ACKNOWLEDGES
AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM THEREIN. EACH PARTY ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE OF SUCH PARTY HAS BEEN AUTHORIZED BY SUCH PARTY TO
REPRESENT OR, TO THE KNOWLEDGE OF SUCH PARTY, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION SEEK TO ENFORCE
THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS
6
WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION 13.
14. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
15. DEFINED TERMS. Terms used herein but not otherwise defined
shall have the meanings set forth in the Merger Agreement.
16. TERMINATION. This Agreement shall terminate upon the earliest
of (i) the Effective Time (as defined in the Merger Agreement), (ii) the date of
termination of the Merger Agreement, or (iii) the date the Company Board
recommends to the Company's stockholders an Acquisition Proposal other than the
transactions, including the Merger, contemplated by the Merger Agreement. This
Agreement may also be terminated as to any Holder at any time upon one business
day prior written notice to such Holder from the Special Committee or the
Company Board. Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be no
liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement; and provided further that nothing herein shall limit, restrict,
impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Merger Agreement.
[Signature page follows]
7
IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of each of the parties hereto, all as of the date first above written.
ROCK BOTTOM RESTAURANTS, INC., a Delaware
corporation
By: /s/ XXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President, Chief
Financial Officer and Chief
Administrative Officer
HOLDERS:
Shares of RB CAPITAL, INC., a Delaware corporation
Company Common Stock: None
By: /s/ XXXXX X. DAY
---------------------------------------
Name: Xxxxx X. Day
Title: President
Address: c/o Xxxxx X. Day, President
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Shares of RBR ACQUISITION CORP., a Delaware corporation
Company Common Stock: None
By: /s/ XXXXX X. DAY
---------------------------------------
Name: Xxxxx X. Day
Title: President
Address: c/o Xxxxx X. Day, President
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Shares of Company By: /s/ XXXXX X. DAY
Common Stock: 1,333,772 ---------------------------------------
Xxxxx X. Day
Address: 0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Shares of Company By: /s/ XXXXXX X. XXXXXXXX
Common Stock: 519,136 ---------------------------------------
Xxxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Shares of Company By: /s/ XXXXXX XXXX
Common Stock: 216,200 ---------------------------------------
Xxxxxx Xxxx
Address: One East Xxxxxx Drive, Room 3430
Xxxxxxx, Xxxxxxxx 00000
Shares of Company By: /s/ XXXXX X. XXX
Common Stock: 181,065 ---------------------------------------
Xxxxx X. Xxx
Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
SCHEDULE I
1. The following shares beneficially owned by Xxxxx Xxx are held in the
name of the following trusts, of which Xxxxx Xxx is trustee:
NAME SHARES
-------------------------------------------------- ------------
Day Family Charitable Remainder Trust 62,500
Day Family Irrevocable Trust 412,635
Xxxxx X. Day Charitable Remainder Trust 62,500
Xxxxx X. Day Charitable Lead Annuity Trust 137,150
The Day Foundation 5,850
2. The following shares beneficially owned by Xxxxx Xxx are as follows:
NAME RELATIONSHIP SHARES
------------------------------------ ------------------- ------------
X.X. Xxx Ltd. (a Colorado Limited Managing Partner 3,000
Partnership) (along with wife)
Xxxxx X. Xxx Irrevocable Grantor Trustee 8,850
Trust
SCHEDULE II
None
